Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210917 DOCKET: C68401

Fairburn A.C.J.O., Miller and Zarnett JJ.A.

BETWEEN

Seyedehzahra Delnaz Yekrangian and Elle Hariri Cameron Applicants (Appellants)

and

Christopher Allan Boys, Kristy Anne Boys and Stefan Brogren Respondents (Respondents)

Counsel: Melvyn L. Solmon and Rajiv Joshi, for the appellants Jonathan Barr and Amiri Moses Dear, for the respondents

Heard: March 3, 2021 by video conference

On appeal from the judgment of Justice Andra Pollak of the Superior Court of Justice, dated May 12, 2020, with reasons reported at 2020 ONSC 2320, 20 R.P.R. (6th) 113.

B.W. Miller J.A.:

Overview

[1] The appellants purchased a Toronto residential property in 2017, intending to replace the existing house with a much larger one. They have been prevented from proceeding with their plans by the existence of rights of way registered on title in favour of two neighbouring properties. Because the rights of way are registered on title, the appellants had notice of them prior to completing the purchase. The appellants believed, relying on advice from their realtor, that the rights of way had been abandoned. Their neighbours – the beneficiaries of the rights of way – believed otherwise. The appellants sought a declaration that the rights of way had been abandoned, and an order deleting them from title. The application judge disagreed and dismissed the application. The appellants appealed.

[2] As I explain below, I would dismiss the appeal as it pertains to the right of way in favour of 176 Strachan Avenue (except to the extent that the right of way is obstructed by the house at 121 Massey Street), but allow the appeal as it pertains to the right of way in favour of 174 Strachan Avenue. The extension of the brick house at the servient tenement, 121 Massey Street, in place since at least 1986, totally obstructs the 174 Strachan right of way, and makes the right of way useless for accessing 174 Strachan. Because the previous owners in title of 174 Strachan did not object to a total obstruction of their right of way, the only available inference is that they intended to abandon it. The same inference is unavoidable with respect to the partial obstruction of the right of way in favour of 176 Strachan caused by the presence of the house extension at 121 Massey Street.

Background

Factual Overview

[3] The houses situated on the dominant tenements – 174 and 176 Strachan – are row houses with rear gardens abutting 121 Massey Street, the servient tenement. 174 and 176 Strachan lack direct access to their rear gardens except through the houses themselves. They each benefit from a registered right of way that runs up the driveway of 121 Massey Street at a width of approximately eight feet, then bends, in an “L” shape, to run along the length of their respective rear gardens at a width of approximately eight feet. The appellants’ intended construction would completely obstruct both rights of way.

[4] The respondents Christopher Boys and Kristy Boys are the owners of 174 Strachan and the respondent Stefan Brogren is the owner of 176 Strachan. The appellants Seyedehzahra Delnaz Yekrangian and Elle Hariri Cameron are the owners of 121 Massey.

[5] The rights of way were established by the deed for 121 Massey dated September 28, 1905.

[6] The respondents concede that there have been encroachments on both rights of way over the years. A previous renovation not later than 1986 extended the rear of the house at 121 Massey to within approximately one foot of the property line with 174 and 176 Strachan. The house extension runs along the entire length of 121 Massey’s boundary with 174 Strachan, and along seven feet of its boundary with 176 Strachan. Previous owners of 174 and 176 Strachan planted trees near the property line with 121 Massey. A previous owner of 176 Strachan constructed a fence along the entirety of the boundary with 121 Massey, and that fence was rebuilt by the respondent Mr. Brogren. At various times garden sheds at the rear of 121 Massey were built on the rights of way. Finally, sometime between 2017 and 2018, the owners of 123 Massey, another neighbouring property, built a residence that encroached by one foot eleven inches onto the rights of way.

The Decision Below

[7] The appellants applied to the Superior Court for: (i) a declaration that the two rights of way had been abandoned, and (ii) an order that the two rights of way be deleted from the records associated with the servient and dominant tenement lands. Ultimately, the application judge dismissed the application.

[8] The central issue before the application judge was whether the appellants had met their burden of establishing that the respondents, or their predecessors in title, had ceased using the rights of way, and whether this non-use indicated an intention to abandon the rights of way. It is uncontested that the application judge correctly stated the governing legal principles.

[9] The rights of way were noted in the deeds for 174 and 176 Strachan. Although this evidence was not determinative, the application judge found that it was some evidence that there was no intention to abandon the rights of way as of the date of the last purchase and sale of those properties.

[10] In reaching her ultimate conclusion that the rights of way had not been abandoned, the application judge found that the nature of both rights of way is to permit access to the rear of 174 and 176 Strachan for property maintenance like renovations, repairs, and landscaping – rather than to provide day-to-day pedestrian access – and that the totality of the evidence did not establish non-use.

[11] To the contrary, the application judge found that the rights of way remained useable, and had in fact been used to access the rear of 174 and 176 Strachan as recently as 2015. She relied heavily on the evidence of a contractor employed by the respondents in 2015, who said that he used the rights of way to access the rear garden of 176 Strachan (and from there to access the rear garden of 174 Strachan), notwithstanding the encroachments. She accepted the contractor’s evidence that he had backed his truck up the driveway of 121 Massey and delivered construction materials, including dry-wall, PVC drain pipes, and bags of cement, over the boundary fence to 176 Strachan, and then from 176 Strachan into the rear garden of 174 Strachan.

[12] The application judge placed no weight on the testimony of a former tenant of 121 Massey, who testified that she had refused permission to persons who had asked to use the rights of way. The tenant had told them the rights of way were no longer in existence. Neither her refusals nor her belief that the rights of way had been extinguished provided any evidence that the beneficiaries of the rights of way had intended to abandon their legal rights.

[13] The application judge also rejected the former tenant’s evidence that the house extension, sheds, trees, and fences had totally obstructed the rights of way and made them impassable, and placed little weight on surveys that the appellants argued demonstrated the totality of obstruction. She found the survey and testimonial evidence about the dimensions of the sheds to be inconclusive.

[14] The application judge thus concluded that the evidence supported a “finding of ‘use’ for a specific purpose”: to access the rear gardens of 174 and 176 Strachan for property management. She concluded that the appellants failed to establish that the respondents, or their predecessors in title, had expressly or impliedly abandoned the rights of way.

Issues on Appeal

[15] The appellants raise multiple grounds of appeal. It is convenient to group them as follows:

I. the application judge erred by misinterpreting the rights of way;

II. the application judge erred by finding the appellants had not established non-use of the rights of way and finding the rights of way had not been abandoned.

The Fresh Evidence

[16] The appellants sought leave to adduce the following fresh evidence on appeal: (i) a copy of a survey for 121 Massey dated December 16, 1986; (ii) a reported Ontario Municipal Board (“OMB”) decision; and (iii) a deed of land for 174 Strachan registered in 1967. Additionally, the appellants included in their factum a sketch or diagram purporting to show the rights of way.

[17] I would not accept the fresh evidence. None of it satisfies the test for admission established in Palmer v. The Queen, [1980] 1 S.C.R. 759. No satisfactory explanation was provided as to why this evidence, which pre-existed the hearing of the application, was not introduced then. In any event, none of the evidence is capable of affecting the result.

[18] The survey evidence, which is intended to support the argument that a shed precluded the use of the rights of way, is simply duplicative of other survey evidence that the application judge found unpersuasive. The OMB decision is irrelevant to the matters in dispute. The appellants argue that the deed should be admitted under the court’s discretion to accept evidence necessary to provide the court with a full background of the matter, but I do not consider it necessary. The sketch similarly provides no additional information bearing on the application judge’s determination that the rights of way had not been abandoned.

Interpreting the Nature and Extent of the Rights of Way

Standard of Review

[19] The interpretive question on appeal is whether the application judge erred in her characterization of the nature and extent of the rights of way. This was a matter of interpreting the deed for 121 Massey. The interpretation of the deed is fact specific. It is a matter of ascertaining the objective intentions of the parties from the language used in the deed, read in light of the factual matrix known to the parties at that time. It is a question of mixed fact and law: Owners Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, at para 101. Accordingly, absent an extricable error of law, or a palpable and overriding error of fact, the application judge’s interpretation of the deed is subject to deference on appeal: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, at paras. 26, 36-37; Sattva Capital Corp. v. Creston Moly Corp., [2014] 2 S.C.R. 633, at paras. 49-50, 53.

Application

The Interpretation of the Express Grants

[20] The rights of way were created by express grant. The methodology for interpreting an easement created by express grant is of long standing and was summarized by this court in Fallowfield v. Bourgault (2003), 68 O.R. (3d) 417 (C.A.), at para. 10:

Where an easement is created by express grant, the nature and extent of the easement are to be determined by the wording of the instrument creating the easement, considered in the context of the circumstances that existed when the easement was created.

[21] The rights of way were created by a deed for 121 Massey dated September 28, 1905, registered as Instrument No. 33154F. This deed described the rights of way as follows:

RESERVING therefrom a right of way at all times for all persons entitled thereto and to the grantors and all those claiming under them, over, along and upon the northerly ten feet also the easterly portion of the northerly twenty-seven feet and seven inches of the hereinbefore described parcel being eight feet nine inches wide at the north and five feet eight inches in width at the southerly limit thereof…

[22] The text of the deed does not give the municipal addresses or any other descriptors of the dominant tenements, simply referring to “all persons entitled” to a right of way. It is undisputed that 174 and 176 Strachan are the dominant tenements.

[23] The rights of way established by the 1905 deed are referenced in the title documents for the dominant tenements. These documents include Instrument No. CA167742 for 174 Strachan, and Instrument No. CA411669 for 176 Strachan.

[24] Although there are two rights of way, in the sense that two different properties are entitled to use a portion of the lands of 121 Massey and two sets of legal relationships are established, the portion of the land that is burdened is more or less identical in both cases. [1]

The Application Judge Did Not Conclude There Was a Single Right of Way

[25] As a preliminary matter, the appellants argued that the application judge made an extricable error in principle by misapprehending the two rights of way as one and failing to distinguish between them.

[26] The application judge did not make that error. Although the application judge did, throughout her reasons, refer to right of way in the singular, this was simply an expedience and one that was similarly adopted in the 1905 deed. The formulation provided in the 1905 deed refers to “a right of way at all times for all persons entitled.” The deed would have been more precise had it specified “a right of way at all times for the benefit of each of 174 Strachan and 176 Strachan,” as this was clearly what was intended and provided. The application judge’s reasons as a whole make it abundantly clear that she understood there were two sets of legal relations at issue: one between 121 Massey and 174 Strachan, and one between 121 Massey and 176 Strachan.

The Application Judge Did Not Require the Appellants to Produce Evidence of Non-Use

[27] The appellants argue that the application judge erred in principle by requiring them to provide evidence of non-use. The appellants argue that the application judge jumped from rejecting the previous tenant’s evidence of non-use, to concluding that the appellants had not proven non-use.

[28] I do not agree that the application judge erred. The application judge was of course entitled to disbelieve the tenant’s evidence that no one had used the rights of way during her tenancy and made no error in doing so. She was similarly entitled not to accept as determinative the tenant’s evidence that she denied access to the rights of way. A reading of the reasons as a whole demonstrates that the application judge understood she had to consider all the relevant evidence from whatever source – and not simply the evidence led by the appellants – in order to determine whether the appellants had established an intention to abandon the rights of way. She did so.

The Application Judge Did Not Misinterpret the Purpose of the Rights of Way

[29] The appellants also argue that the application judge erred by misinterpreting the purpose of the rights of way. They argue that this error flowed from the application judge’s alleged failure to draw the desired inference from one particular factual circumstance known to the parties in 1905 – the existence of sheds at the rear of the dominant tenements.

[30] The 1905 deed describes the bounds of 121 Massey, in part, by reference to “the westerly face of a row of sheds now standing on the rear premises of dwelling houses fronting toward Strachan Avenue”.

[31] The appellants argued before the application judge that she should infer from this detail that the purpose of the rights of way was to enable the occupiers of the dominant tenements to access these sheds on their respective properties. In oral argument before this court, counsel suggested that horses would have been kept in the sheds, in the same way that contemporary homeowners store vehicles in garages, and would similarly have been accessed by the occupiers on a daily or near daily basis. As the sheds – and the horses – no longer exist, the original purpose of the rights of way had lapsed, and non-use followed.

[32] The appellants’ argument tying the nature of the rights of way to the sheds is speculative, and the application judge made no error in rejecting it. There is no express statement in any of the title documents explaining the nature of the rights of way. In order to ascertain the nature of the rights of way, the application judge was required to consider the context that would have been known to the original contracting parties at the time they agreed to the creation of the rights of way. As the appellants argue, this context includes the existence of sheds at the rear of 176 and 174 Strachan, and the rights of way were obviously intended to provide access to these sheds and whatever was stored in them. But the application judge made no error in rejecting the argument that this must have been the whole of the purpose of the rights of way, such that once the sheds were gone, the rights of way became obsolete.

[33] Another contextual factor, which the application judge found to be significant, is that there was, and is, no direct access to the rear of 174 and 176 from Strachan Avenue, and the parties would have contemplated that the owners of 174 and 176 Strachan would, from time to time, need periodic access to the rear of their properties for the purpose of performing periodic maintenance or renovation. This interpretation of the deed establishing the right of way was available to the application judge, and she made no error in characterizing the purpose of the rights of way as broader than facilitating access to sheds, and including access for periodic maintenance and renovation.

Non-Use of the Rights of Way and Intention to Abandon

General Principles

[34] A right of way is a type of easement. The basic principles governing the abandonment of easements by release are of long standing and were recently summarized by this court in Remicorp Industries Inc. v. Metrolinx, 2017 ONCA 443, 138 O.R. (3d) 109.

[35] The party asserting abandonment must prove, in the absence of express release, that the party holding the easement demonstrated a fixed intention never to assert the right conferred by the easement, or to transmit it to anyone else: Remicorp, at paras. 47, 50.

[36] The holder’s intention is to be inferred from all the surrounding circumstances, including any non-use of the easement and any acquiescence to encroachments on the easement. Non-use can constitute some evidence of an intention to abandon, although it is generally insufficient to prove an intention to abandon by itself: Remicorp at paras 47, 49, 59.

[37] A court will not lightly infer that an owner has given up the easement, a valuable right in property, for no consideration: Remicorp, at para. 47, citing Gale on Easements, 20th ed. (London: Thomson Reuters (Professional) UK Limited, 2017), at paras. 12-26. That is particularly the case where the easement appears on title, as it does in this case.

[38] An intention to abandon is found more readily where a permanent structure has been constructed over the right of way, and the holder of the right of way has not objected to it: see, analogously, Tasker v. Badgerow, [2007] O.J. No. 2487, at para. 41. The construction of a permanent structure that completely obstructs a right of way communicates that the right of way will be permanently and totally denied to the holder. If the holder does not object, the court may infer that the holder acquiesced, and may infer that the holder intended to abandon it. Where a permanent structure constitutes a partial obstruction only, it will be more difficult to infer that the holder intends never to assert the right conferred by the easement, and it may be possible to conclude that the holder abandoned the use of part of the right of way only.

174 Strachan

[39] The addition to the house at 121 Massey – a permanent structure unlike a fence or a garden shed – has, for all practical purposes, completely obstructed the right of way in favour of 174 Strachan for at least 35 years. The structure encroaches so far into the right of way that only a 1-foot-wide, 7-foot-long gap remains between the boundary fence of 174 Strachan and the wall of the house at 121 Massey. There was no evidence before the application judge that the right of way in favour of 174 Strachan had been, or could be, used for any purpose, other than the evidence of the respondent owner of 174 Strachan who said that he believed lengthy wooden boards could conceivably be run through the gap.

[40] Although what is suggested by Mr. Boys – the use of the gap to transport narrow wooden boards – is not physically impossible, the standard is not physical impossibility. The gap permits no access to the rear garden for the purpose of property maintenance, or for any other purpose.

[41] The contractor himself did not use the gap when he accessed 174 Strachan. He testified that he instead transported his materials over the boundary fence between 121 Massey and 176 Strachan into the latter’s rear garden. From the rear garden of 176 Strachan, he moved the materials over the boundary fence between 176 and 174 Strachan, into the rear garden of 174 Strachan. He did not testify that he pushed the materials through any remaining gap still existing beside the house extension, nor was there a finding that this would have been possible. Even if it were possible to move wooden boards through the gap as Mr. Boys suggested, it would not be possible to move the other types of materials described by the contractor – such as PVC pipes and bags of cement – that were used for property maintenance.

[42] Accordingly, I conclude that the application judge made a palpable and overriding error in not finding that the house extension constitutes a complete obstruction to the use of the right of way by 174 Strachan. It is inconceivable that the extension could have been built without the knowledge and acquiescence of a predecessor in title, who could not have failed to appreciate that it constituted a complete and permanent obstruction. The application judge erred by not finding that there had been an intention to abandon the right of way by a predecessor in title to the respondents Christopher Boys and Kristy Boys.

176 Strachan

[43] The right of way in favour of 176 Strachan is only partially obstructed by the house extension, and to a degree that does not prevent its use by 176 Strachan. The presence of the extension, in itself, is therefore not sufficient to establish that predecessors in title to 176 Strachan had any intention to abandon the right of way in its entirety, as opposed to abandoning only one portion of it that is unnecessary for it use. It is therefore necessary to consider the other obstructions.

The Sheds

[44] The appellants argued that the rights of way were obstructed by a wood frame shed and a teal coloured shed that later replaced it. The appellants argue that the nature of the obstruction was established both by property surveys and the evidence of the tenant. As explained below, I do not agree that the application judge misapprehended the evidence related to the sheds.

The Surveys

[45] The appellants introduced three surveys into evidence: (1) an undated survey of 121 Massey; (2) a 1987 survey of 176 Strachan, and (3) a 1988 survey of 174 Strachan.

[46] The surveys were tendered for three purposes. The first was to establish that there were at one time sheds at the rear of the dominant tenements. The second purpose was to provide more direct evidence that the rights of way had been abandoned by the time of the surveys, by the notation on the 1987 survey “apparently never in existence” and on the 1988 survey “not in use.” The third purpose was to establish that the frame shed (succeeded by the teal coloured shed) at the rear of 121 Massey completely obstructed the right of way, and rendered it impassible.

[47] The application judge was critical of this evidence, characterizing it as “not properly introduced, unsworn” and gave it “minimal weight, if any.”

[48] It is not entirely clear why the application judge characterized the surveys as not properly introduced. It is not uncommon for historical property surveys to be introduced as attachments to affidavits that were not sworn by the authors of the surveys. The older the survey, the less likely that that its drafter will be available to give evidence. Regardless, the application judge nevertheless accepted the surveys into evidence and noted their evidential limitations. As explained below, there was no error here.

[49] First, with respect to the use of the 174 Strachan survey to establish the historical presence of sheds at the rear of 174 and 176 Strachan, this fact was not disputed, and the evidence was unnecessary.

[50] Second, the two notations on the surveys attesting to the non-use or non-existence of the rights of way were hearsay. There was no evidence as to the source of these notations, or the basis for the conclusions they expressed. The application judge made no error in refusing to rely on them.

[51] Third, the application judge made no error in finding the surveys did not establish that the wood frame shed rendered the rights of way impassable. The surveys that depicted the wood frame shed did not measure the gap between the shed and the wall of the house at 121 Massey or give a complete rendering of the sheds’ dimensions.

The Evidence of the Tenant and the Contractor

[52] Although the former tenant of 121 Massey testified that the gaps on each side of the frame shed were not sufficiently wide to allow for access of any kind to 176 Strachan, the application judge found her evidence unreliable on this and other matters. She was entitled to do so. She accepted the evidence of the contractor that he in fact managed to make use of the rights of way to access 176 Strachan in 2015, notwithstanding the presence of the shed.

[53] On appeal, the appellants argue that the contractor must have been mistaken and used some other access point, such as a neighbouring property that was then vacant. But this was not argued at the hearing of the application and was not put to the contractor on cross-examination. It would be improper to consider this proposition for the first time on appeal.

[54] The application judge did not misapprehend any of this evidence before her. She was entitled to prefer the evidence of the contractor over that of the tenant, and made no error in concluding that the survey evidence was consistent with the evidence of the contractor. The survey evidence did not establish that the portion of right of way between the shed and the house was too narrow to be used in the manner stated by the contractor. And as further explained below, the contractor’s evidence was not inconsistent with the evidence as to the degree of obstruction established by the boundary and driveway fences.

The Boundary Fences

[55] A previous owner of 176 Strachan built a fence on the boundary with 121 Massey, and the respondent owner of 176 rebuilt it. The appellants claim that this is significant for two reasons. First, where the owner of a dominant tenement erects a fence, this can be some evidence of an intention to abandon the right of way: Overs v. ten Kortenaar (2006), 46 R.P.R. (4th) 118 (Ont. Sup. Ct.), at paras. 7, 11. Second, the appellants argue that the existence of the fences is good reason to doubt that the rights of way could have been used as described by the contractor.

[56] I do not agree. The application judge found the rights of way granted the residents of the dominant tenement the right to access their rear gardens, including for property maintenance purposes. The installation of a fence that is incompatible with daily pedestrian use does not necessarily indicate an intention to abandon a right of way that exists for these other purposes.

[57] The application judge found that the fence at the boundary of 176 Strachan and 121 Massey was not an insurmountable barrier to accessing the rear of 176 for property maintenance, a purpose that might only arise once every 30 or 40 years. It would not be unreasonable for a dominant tenement to erect a fence across a right of way to keep out pedestrian trespassers, or to keep in small children, without intending to forego the right to use the right of way for maintenance and renovation. This is so, regardless of whether the fence could be worked around - as appears to have been the case - or if the fence had to be temporarily removed, or a gate temporarily installed. None of these measures would be disproportionate to the use to which the right of way would be put, and do not suggest an intention to abandon. The application judge made no error in finding that the installation of the boundary fences did not make the rights of way unusable, given the nature of the rights of way.

The Driveway Fence

[58] The appellants also argue that the application judge further erred by misapprehending the tenant’s evidence about another fence said to obstruct the rights of way. This fence was installed by the previous tenant of 121 Massey across her driveway to keep out vehicles and pedestrians and, according to the tenant, to communicate that the rights of way had been terminated. This fence contained a gate for pedestrian use. It was later replaced with another fence featuring a door that also allowed vehicular access.

[59] The appellants argue that this driveway fence constituted a complete obstruction, that the dominant tenements acquiesced to it, and that it constitutes evidence of abandonment. Additionally, the appellants argue that the presence of the fence prevented the use of the rights of way and provides reason to disbelieve the evidence of the contractor that he actually used the rights of way to access 176 Strachan. They argue that it would not have been possible for the contractor to have driven his vehicle up to the boundary fence and unloaded, given the presence of the first fence.

[60] The application judge found that the fence had not, in fact, prevented the contractor from using the rights of way in 2015. The application judge accepted the contractor’s evidence that he reversed his truck down the driveway of 121 Massey and lifted his building materials over the boundary fence. The appellants argue this account was impossible, as it does not address how he got the materials over or through the driveway fence.

[61] The application judge made no error in her apprehension of the contractor’s evidence. The contractor was cross-examined on his affidavit and answered all questions put to him by counsel. Therefore, if there is any lacunae in the record as to whether or to what degree the driveway fence presented an obstacle to the contractor, that lacunae arises directly from the cross-examination of the contractor. On the record before her, the application judge was satisfied that the contractor did what he claimed, and that the presence of the driveway fence did not prevent his use of the right of way. Whether the contractor drove up to the fence and hauled the materials over it, or carried the materials through the gate in the driveway fence to the boundary fence is neither impossible nor inconsistent with his evidence. There is no palpable error here.

Conclusion on Non-Use and Abandonment

[62] As explained above, the application judge made no error in concluding that the appellants did not meet their burden of establishing non-use. More significantly, they did not meet their burden of proving on a balance of probabilities that either the current owners of 176 Strachan or their predecessors in title intended to abandon the right of way in total.

[63] The fences and sheds do not obstruct the right of way to the same extent as the extension of the house. They are not structures of any permanence, nor have they prevented the right of way from being used to access the rear of 176 Strachan for occasional maintenance, renovation, and repair. To the extent that the fences constituted an obstruction, they were and are easily removable. Similarly, a garden shed is not typically constructed in a manner that makes it impractical or disproportionately expensive to remove or modify to facilitate the sort of access contemplated by the rights of way. The sheds were either easily removable or the appellants failed to discharge their burden of establishing that they were not. Permitting sheds and fences (and even constructing a fence) did not, in this case, suggest abandonment.

The Argument for Variation of the Right of Way in Favour of 176 Strachan

[64] What are the implications of the encroachment of the extension of the house at 121 Massey onto the right of way in favour of 176 Strachan? As stated above, the extension of 121 Massey sits on part of the right of way in favour of 176 Strachan that, unlike the right of way in favour of 174 Strachan, does not completely block access to the dominant tenement.

[65] The appellants ask, as an alternative to deleting the right of way from title (and for the first time on appeal), that this court modify the right of way in favour of 176 Strachan and provide a declaration that 176 Strachan has abandoned the portion of its right of way currently obstructed by the house extension. They ask for an order deleting this portion of the right of way from title.

[66] The respondents resist this request on the basis that it is improper for the appellants to seek this relief for the first time on appeal, particularly since survey evidence as to the precise boundaries of the house extension at 121 Massey, tested under cross-examination, is not before the court. I agree that the record before this court does not allow for a determination of the precise dimensions of the portion of the right of way on which the house is situated and the portion remaining. However, it is an inescapable conclusion that if the predecessors in title to 174 Strachan – by acquiescing to the construction of the extension of 121 Massey – abandoned their right of way, then the predecessors in title to 176 must similarly have abandoned that portion of the right of way on which the house extension sits. As it is not possible for this court to make a finding of the dimensions of the right of way so impacted, I would remit the matter to the Superior Court for a determination of the dimensions of the portion of lands subject to the right of way in favour of 176 Strachan that are occupied by the house extension at 121 Massey, and for an order deleting that portion of the right of way in favour of 176 Strachan from title.

Disposition

[67] I would dismiss the appeal with respect to the application for a declaration that the right of way in favour of 176 Strachan has been abandoned in its entirety. I would allow the appeal with respect to the alternative application for a declaration that the part of the right of way in favour of 176 Strachan situated beneath the house at 121 Massey has been abandoned. I would remit the matter to the Superior Court for a determination of the dimensions of the remaining part of the right of way that has not been abandoned, and the issuing of whatever order is necessary to amend the titles of 176 Strachan and 121 Massey.

[68] I would allow the appeal with respect to the right of way in favour of 174 Strachan, which has been abandoned, and would order that the right of way be deleted from the title of the dominant tenement identified by PIN 21298-0107.

[69] The parties are invited to submit brief submissions on costs, not exceeding three pages, to be submitted within four weeks if the parties are unable to come to an agreement.

Released: September 17, 2021 “JMF” “B.W. Miller J.A.” “I agree. Fairburn A.C.J.O.” “I agree. B. Zarnett J.A.”

[1] There are minor differences in the dimensions given in the two instruments, but for the purposes of this analysis they are inconsequential.